[1994] OLRB Rep. November 1594
2218-94-R Ontario Liquor Boards Employees' Union, Applicant v. The Municipality of Metropolitan Toronto, Responding Party v. Metropolitan Toronto Civic Employees' Union, Local 43, Intervenor #1 v. Canadian Union of Public Employees, Local 79, Intervenor #2
BEFORE: S. Liang, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.
APPEARANCES: C. Flood, John Coones, Don McDermott and Julia Noble for the applicant; Colleen Edwards, Harold Ball, Bill Taylor and Joe Brinkos for the responding party; Frank Luce and Denis Casey for Canadian Union of Public Employees, Local 79; no one appearing for Metropolitan Toronto Civic Employees' Union, Local 43.
DECISION OF THE BOARD; November 21, 1994
1This is an application for certification. There are a number of outstanding issues to be resolved in this application. The parties agreed to appear before the Board on November 7, 1994 to deal with a preliminary issue concerning the applicant's (also referred to herein as the "OLBEU") ability to accept for membership the employees in the proposed bargaining unit. Further hearing dates in December have been scheduled to deal with the remaining issues, if necessary.
2It is the position of the Canadian Union of Public Employees, Local 79 ("Local 79") that recent amendments to the applicant's constitution, purporting to cure a defect which was the basis of an earlier Board decision (in Board File No. 0322-94-R), were not effective. The responding party (referred to herein as "Metro" or "the employer") takes no position with respect to this issue. The Metropolitan Toronto Civic Employees' Union, Local 43 has also intervened in this application, but did not participate at the hearing with respect to this preliminary matter and appears to take no position on it.
3Board File No. 0322-94-R was an earlier application for certification filed by the applicant, regarding the same unit of employees. In a decision dated June 15, 1994, for which reasons were provided on July 5 [now reported at [1994] OLRB Rep. July 938], the Board dismissed the application for certification. The Board found that the employees for whom the applicant sought to obtain bargaining rights were not eligible for membership in the applicant under the provisions of its Constitution. Further, the Board concluded that neither did the applicant have an established practice of admitting persons to membership without regard to the eligibility requirements of its Constitution.
4In response to the decision of the Board, the applicant, by motion passed unanimously at a Special Meeting of the Provincial Executive on August 3, 1994, amended the membership provision of its Constitution. Prior to passing this motion, the Executive, among other things, also passed a motion amending the Constitution to allow for constitutional amendments to be made at a Special Meeting. The terms of the Constitution provide for constitutional amendments to be made at Policy and Objectives Conferences. The applicant argues as a matter of interpretation that these provisions do not preclude the possibility of such amendments also taking place at Special Meetings.
5The membership evidence which has been submitted in support of this application was collected after the amendment to the Constitution was made.
6The Board received into evidence the Constitution of the applicant, dated February 1994, and the Minutes of the Special Meeting at which certain amendments to the Constitution were made, dated August 3. The Board also heard the evidence of John Coones, president of the applicant.
7It is asserted by Local 79 that the amendment is not effective because it was not done in accordance with the procedures established in the Constitution for constitutional amendments. Local 79 accepts that the Board should not be unduly technical in assessing whether the applicant has complied with its own procedures; however, it submits that even if the Board's concern is that there be "substantial compliance" with the applicant's internal procedures, these facts fail to meet that test. Neither the amendment to the Constitution permitting amendments to be made at Special Meetings, nor the amendment to the membership provision, are valid. The applicant's Constitution provides that constitutional amendments must be made at the Policy and Objectives Conference, which the Constitution requires be held annually between April 1 and May 30. This is more than a technical defect. Amendments to a Constitution are fundamental issues to a trade union, and particularly where the amendments deal with membership.
8The applicant takes the position that the Board ought not be concerned with how the constitutional amendments were effected. The Board need only be satisfied that, having regard to the applicant's Constitution as it now reads, the applicant can accept into membership the persons whom it seeks to represent. In any case, the amendments were effected in accordance with the internal procedures set out in the Constitution. In the alternative, it is asserted that the amendments substantially comply with the applicant's internal procedures, and ought to be accepted by the Board as effective for the purposes of the certification application.
9The parties referred the Board to a number of decisions of this Board, other tribunals and the courts, which we find it unnecessary to list or refer to here, since the main legal framework and propositions were uncontroversial.
10We find it unnecessary to determine whether as a general matter the Board, for the purposes of a certification application, should inquire into the procedures applied by a union in amending its constitution so that it can accept into the membership the employees affected by that application. We also need not and do not determine whether the manner in which the amendments were effected comply in a technical or contractual sense with the terms of the Constitution. It is sufficient for our purposes that we have found the procedures invoked by this applicant to effect the amendment in question to be substantially consistent with its internal rules. If there were defects in the procedures, they are not so significant that they lead us to conclude that the applicant is unable to admit into membership the persons whom it seeks to represent.
11In arriving at our conclusion, we have regard to the fact that the Executive body (consisting of about 45 delegates) which passed the motions on August 3 is identical to the body which is entitled to vote at the Policy and Objectives Conference. There is no dispute that had the motion been passed by this same group of delegates at the Policy and Objectives Conference, it would have been a valid constitutional amendment. Further, to the extent that certain procedures for the prior submission and compilation of resolutions to be presented to the Policy and Objectives Conference do not apply to a Special Meeting of the Executive, the absence of these procedures is not determinative in the case before us. The procedures for the Policy and Objectives Conference do not provide such substantive rights to the members of the applicant that the differences between the way in which decisions are made at this Conference, and at a Special Meeting, are compelling for the purposes of our determination. Even with respect to the Policy and Objectives Conference, for instance, there is no mechanism for notice to members of proposed resolutions, or for discussion or consultation between the members and their delegates. Members attend the Conference as observers only, and upon receiving the approval of the Board of Directors.
12The amendments were made in good faith, in response to a decision of the Board, and in support of organizing activities which had already been in place for some months. There is no evidence that these organizing activities are a matter of controversy within the applicant. The decision to effect the amendments at a Special Meeting was made having regard to the considerable delay that would result if the matter had waited until the next Policy and Objectives Conference in April or May of 1995, and the effect this delay would likely have on the employees in the proposed bargaining unit.
13For these reasons, the Board concludes that the applicant is not precluded from admitting into membership the persons whom it seeks to represent and that the amendment to its Constitution is effective for the purpose of curing the defect to this application for certification found in the Board's prior decision.
14The Board is indebted to the parties for their thorough and thoughtful submissions.
15This panel is not seized.